IMPORTANT POINT
Interest and welfare of children is paramount in custody matters.

Dr. Smt. Shalini Phansalkarjoshi, J.—Whether the appellant the maternal grandfather or the respondent-natural father should have the custody of two minor children, aged 17 years and 13 years respectively, is the question for consideration raised in this appeal, which is directed against the judgment and order dated 03/06/2014 passed by District Judge 1, Darwha, District - Yavatmal in M.J.C. No. 12/2010.

2. The said petition was filed by the respondent herein under the provisions of Section 25 read with Section 7 of the Guardian and Wards Act (hereinafter referred to as “Act” for convenience) for the custody of his two minor children. By the impugned judgment and order, the trial court allowed the said application and directed appellant no.1 herein to hand over the custody of minor children to respondent. However, it is a matter of record that as on today the custody of the minor children is with their maternal grandfather appellant no.1 Lachhamanna Shetpalliwar.

3. Facts, which may be relevant, for the purpose of deciding this appeal, can be stated as follows :

The marriage of respondent with Ramakanta, daughter of appellant no.1, was performed in the year 1997. From the wedlock, Ramakanta had given birth to two children, by name, Amruta and Krushikesh. In the year 2010, Ramakanta died on 27/07/2010 at her maternal house at Mandava, Tah. Kinvat, District Yavatmal, as she was suffering from Cancer. At the time of her death, Amruta was studying in 6th standard at Babnaji Maharaj High School Dehni, whereas Krushikesh was studying in 3rd standard at Gurukul Convent (C.B.S.E.) School at Digras.

4. As per the case of respondent, as he was in the mental shock on account of the death of his wife, on the request of maternal uncle of the minor children, he allowed the children to be kept in the house of maternal grandfather, and as a result, since the death of Ramakanta, the children are residing in the house of the appellant no.1. It is the grievance of the respondent that on several occasions he went to bring the children back to his house, so that they can continue their studies in their school, however they were not sent by the appellant no.1. Respondent was, therefore, constrained to file the application before the trial court for getting custody of the minor children. It was stated by him, that he was financially sound and able to maintain and look after the children. Moreover, village Mandava, where the children are residing with the appellant no.1, is a small village and is having only one primary school upto 4th standard only. No convent educational facilities are available at that village. Respondent is having ambition to make his children as Doctor and Engineer and as educational facilities are not available at the village, where the children residing with the appellant no.1, respondent claimed the custody of minor children on the ground that their welfare will be look after better by him, he being their natural father..

5. This application came to be resisted by the appellant no.1 contending inter alia that respondent was addicted to alcohol, he was an uncultured person, he has not treated his wife with love and affection, even he did not provide her proper medical treatment, and hence, there was least possibility of his looking after the minor children properly. It was contended that merely because respondent is the natural father of the minor children, custody of the children should not be handed over to him, as the court has to consider the welfare of the minor children, which has to be of paramount importance.

6. In support of his case, respondent adduced his own evidence. He also examined two witnesses, by name, Shriram Punjaji Marsetwar and Rameshwar Ramnarayan, whereas appellant no.1 herein examined himself and also adduced the evidence of two witnesses, by name, Bhumanna Kolhewar and Vishwanath Nadewar, to prove the second marriage of respondent. Both the parties relied upon various other documentary